A secret US government anti-terror database, which contains the personal details of more than 1.2 million people who have been identified as “known or suspected terrorists”, violates individuals’ constitutional rights, a landmark legal decision has found.
The ruling is expected to lead to improved legal safeguards for US citizens, and potentially European citizens, who have been stopped at the borders of the US, been subject to detention or questioning, or had the contents of their laptops and mobile phones copied because their names appear on the secret list.
The US Terrorism Screening Database (TSDB), known as the “watchlist”, contains biographic and biometric data about 4,600 US citizens and more than one million residents of non-US countries, suspected by law enforcement or border agents in the US and other countries of having links with terrorism.
The Council on Islamic-American Relations (CAIR), which brought the challenge, claimed US officials routinely add people to the list for reasons which fall short of a connection to terrorism.
It argued in legal filings that people could be added to the list for subjective reasons – for example, because their names have been found on the phones of people already on the list, because they have visited Muslim countries, or because they have learned Arabic.
Inclusion on the list can have severe consequences for the individuals affected, leading to family breakdowns, loss of employment and an inability to travel.
Khaled El Ali, who lives in Belgium and is separated from his wife who moved to the US, has been prevented from visiting his two young children for more than two years after being added to the TSDB no-fly list.
His children, aged 11 and 14, have been subject to enhanced questioning and searches because of their links with their father when they have visited him in Europe.
In other cases, people have been refused the right to travel after being mistakenly added to the list.
Rahinah Ibrahim, a Muslim graduate student, was stranded in Malaysia for nine years after being denied re-entry to the US in 2005. It later emerged that an FBI agent had inadvertently added her to the list by ticking the wrong box on a form.
The US shares the watchlist with more than 60 countries, including the UK and the countries of the European Union, which can use it to stop and question, or refuse travel to, people listed.
UK police and border officials have legal rights under Schedule 7 of the Terrorism Act 2000 to stop, question and copy the electronic devices of people entering UK airports and ports.
Officials need no evidence of criminal activity to add people to watchlist
In a landmark decision, US district judge Anthony Tenga found that the US government does not provide a constitutionally adequate remedy for people to challenge their inclusion on the list.
Tenga’s decision, which follows a complaint by 23 US citizens who have been repeatedly stopped, detained and questioned by US border officials when they attempt to travel overseas, is expected to lead to changes in US government policy.
Carolyn Homer, CAIR
Carolyn Homer, attorney for the CAIR, which brought the legal challenge, said Tenga’s decision was a significant breakthrough.
“First, it held that the criteria to place individuals on the watchlist were unconstitutionally vague and arbitrary. And second, it held that individuals on the watchlist must be given notice and an opportunity to challenge that status,” she said.
Homer said that individuals on the watchlist and their travelling companions could be subject to “exceptionally intrusive treatment”, including being forced to hand over their mobile phones and laptops to border officials, who have the powers to analyse and take copies of their content.
“Customs and Border Protection will try to compel individuals on the list to unlock phones. If you unlock it before them, they will say you have consented to a search of your device. If not, they will seize your device and you won’t get it back,” she said.
According to the 32-page decision, government officials can add people to the watchlist without any evidence that the person is engaged in criminal activity, has committed a crime, or will commit a crime in the future. Individuals may remain on the watchlist after they have been acquitted of terrorism-related activities.
It said there was high risk that people could be “erroneously” deprived of their right to travel and suffer damage to reputation.
People who believe they have been wrongly added to the terrorism watchlist can make an application to the Department of Homeland Security Traveller Redress Inquiry Programme (DHS Trip).
However, the judge found that people who raised a complaint were not told whether or not they were on the watchlist and were not informed of the factual basis for their inclusion.
They had no opportunity to rebut the evidence used to justify placing them on the watchlist, and there was no independent review of a person’s placement on the watchlist by a neutral decision-maker.
“The court concludes that DHS Trip, as it currently applies to a listing on TSDB, does not provide to a United States citizen a constitutionally adequate remedy,” the judge wrote.
The 32-page decision revealed that US law enforcement agencies share the watchlist with US and foreign government agencies, which can use the information to support screening and vetting for military, intelligence, law enforcement, visa and immigration decisions.
The judge found that the wide distribution of the database could damage the reputation of individuals listed on it.
The watchlist is used by more than 18,000 law enforcement agencies and 500 private organisations, including railways, colleges, universities, hospitals, prisons and IT suppliers.
Individuals may risk being surrounded by police, handcuffed in front of their families and detained for many hours.
Being on the list could also adversely affect people during traffic stops, interviews and house visits. They could be denied applications for permits, fire arms licences and other permits, the decision noted.
“In short, placement on the TSDB triggers an understandable response by law enforcement in even the most routine encounters,” the judge wrote.
Frequent invasive screening
The 23 US citizens who brought the case claim they have been subject to frequent, invasive screening when they fly to the US or enter the US at a land border.
Anas Elhady, one of individuals in the case, had his phone confiscated multiple times at the US border. Border agents put him under pressure to disclose his phone password and questioned him about its contents, detained him for more than seven hours in a cell and refused him access to a lawyer. An FBI agent told Elhady that his mobile phone conversations were being monitored.
US Customs and Border Protection (CPD) officers handcuffed Elhady after he returned from a trip to Canada and escorted him to a room, where he was held for 10 hours and repeatedly interrogated about his family members and associates.
He required emergency medical treatment during his interrogation, and was transported to and from hospital in handcuffs to receive basic life support.
He claims that CPD officers told him during one stop: “Are you serious? Someone like you should have stopped crossing the border by now.”
Others have been forcibly arrested, often at gunpoint, and detained for long hours in front of their family, had computers and phones searched, seized and copied. They have missed flights because of inspections, and have been refused permission to board flights they have booked.
According to the order, the complainants, including Elhady, have stopped exercising their right to international travel after experiencing enhanced screening when they return to the US. Some have stopped flying within the US following experiences that have led to “psychological threat”.
Terrorist label is subjective, says judge
Tenga wrote that there was “no evidence, or contention, that any of these plaintiffs satisfy the definition of a ‘known terrorist’ – none have been convicted, charged or indicted for any criminal offence related to terrorism, or otherwise”.
He added that they had been labelled as “suspected terrorists”, a determination the court found “to be based, to a large extent, on subjective judgements”, and that there was a “grave risk of erroneous deprivation” under the watchlist inclusion standard.
Boarding pass alerts
More than 1.1 million new names have been added to the watchlist since 2009. More than 98% of the names nominated to the TSDB are accepted on to the list.
Passengers on the list are often identified by the letters “SSSS” printed on their boarding cards and are subjected to extra screening at airports and border crossings.
Government officials have the powers to put people on a no-fly list, a subsection of the watchlist which prevents them from flying internationally or within the US, if the government believes they pose a threat of committing an act of terrorism.
The US has set up “shadow” watchlists which operate in parallel with the TSDB, according to a further legal complaint by CAIR.
They include “Silent Partner”, which applies to people outside the US and non-US citizens flying into the country. Family members and travelling companions of a person on the list are treated as known or suspected terrorists under the programme, CAIR claims in separate legal filings.
Another programme, “Quiet Skies”, is a watchlist of US citizens. According to a complaint filed by CAIR in the US district court in Maryland, federal air marshals and plain-clothes transportation security officers collect detailed behaviour and surveillance information on people named on the list, including their use of the bathroom, wardrobe changes, meals, conversations, whether they sleep on flights and whether they realise they are being stalked.
CAIR challenges the effectiveness of the watchlist for preventing terrorism. It cites US government-funded research which found that there had been fewer than 250 terrorist attacks in the last decade in the US. Only one of the perpetrators was listed on the federal terrorist watchlist, but was taken off the list before the attack.
“Although most terrorist acts in the US are committed by non-Muslims, and indeed in many cases are committed by anti-Muslim extremists, the overwhelming majority of US citizens on the watchlist are Muslim,” it says.
The US government and CAIR have 30 days to present submissions before the court makes a further ruling. CAIR said it would press the court to extend reforms, not just to US citizens, but to people of any nationality on the list.
“It is likely that the US government will try to limit further reforms required by Tenga’s ruling to only US persons,” said Homer. “We don’t believe the court should accept that limitation. Constitutional due process protections extend beyond US citizens.”
The US government has stated that most of the most of the people on the watchlist are Iraqis, Syrians and Afganis, she said, “but we have no way of verifying that”.